Landmark Supreme Court Adoption Ruling
Landmark Supreme Court Adoption Ruling
1. Introduction: The unique nature of adoption
It is not often that a family law case makes the national news, but in April a judgment of the Supreme Court did just that.
The case concerned the important question of whether the court can set aside, or revoke, a validly made order for the adoption of a child, other than by way of an appeal.
As we will see, the answer to the question was in the negative: Adoption orders are final – they cannot be set aside, other than through an appeal.
As the Supreme Court stated: “The unique attribute of an adoption order, in contrast to any other order that may be made for the welfare of a child, is that it is final and permanent. The legal relationship of parenthood between parents and their natural child can only be extinguished by the making of a valid adoption order, and the question is whether the same must be true of the legal relationship established by adoption.”
In this post we examine the case in detail, including looking at what it was about, exactly what was decided by the Supreme Court, and, briefly, what the implications of the decision are.
2. What was the Case About?
The case was about two children who were placed for adoption with their adoptive mother in 2012, following a prolonged period in foster care. At that time, they were aged five and four years old. An adoption order was made in 2013.
Crucially, the children maintained contact with their natural mother. This contact was both facilitated and supported by the adoptive mother.
According to the adoptive mother, both children struggled with being in an adopted placement, having little understanding as to why they could not spend time with their birth family. As a result, the adoptive mother decided that the children should spend time with their birth mother, and extended birth family.
By 2017 the older child was saying that she wanted to live with her birth mother, although the younger child was clear that she wanted to remain with her adoptive mother.
Unfortunately, in 2021 the relationship between the adoptive mother and the younger child broke down, following an incident when the child alleged that the adoptive mother had hit her with an iPad. After this, the child indicated that she no longer wanted to have a relationship with the adoptive mother.
In the following month both children left the adoptive mother, and moved to live with their birth mother. The younger child remained there, but the older one went to live with her birth father in 2022.
In May 2023 child arrangement orders were made providing that the older child live with her birth father and the younger child live with her birth mother. An order was also made that the older child should spend time with her birth mother. These orders conferred parental responsibility on the respective birth parent.
Obviously, both children are now grown up, having both now turned 18 (this, as we will see in a moment, is important). In fact, they both now have children of their own.
As will be seen, and as the Supreme Court pointed out, the breakdown of the adoption was not a consequence of the adoptive mother rejecting either child. On the contrary, her motivation was to support them, and give effect to their wishes and feelings.
3. How did the case get to the Supreme Court?
In April 2023, in the light of the events set out above, the adoptive mother applied to the High Court to have the adoption order set aside, so that she would no longer be the ‘legal parent’ of the two children. The application was made on welfare grounds, to give effect to the wishes of the children.
The application was supported by both of the children, and the birth mother.
The application was heard by Mrs Justice Lieven. She found that there was a power to revoke a validly made adoption order, but said that it could not be used solely on grounds relating to the adopted child’s welfare. Accordingly, she held that she had no power to revoke the adoption orders.
The adoptive mother appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, holding that a court has no jurisdiction to set aside a validly made adoption order. The law, as set out by Parliament, made clear that an adoption order is intended to be permanent. If there has been an error in the making of the order, it can be appealed, but the fact that an adoption “turned out badly” was not a reason for the court to supply a remedy that Parliament chose not to provide.
The adoptive mother appealed again, to the Supreme Court. The appeal was supported by the birth mother, the younger child, and, in some respects, the older child. The adoptive mother contended that there was a pressing need for the court to correct the ‘legal fiction’ said to exist, where the birth mother was once again the de facto mother of the younger child, and possibly the older child as well, but the adoptive mother remained their mother for all legal purposes, and the younger child was trapped in an identity that she had rejected.
4. What did the Supreme Court decide?
The Supreme Court unanimously dismissed the appeal.
Firstly, it confirmed that there was no power to revoke a validly made adoption order, except by way of appeal (and obviously, it was far too late for the order to be appealed in this case).
Secondly, it said that the position of an adopted child is no different from that of a child born to their natural parents. In relation to a child born to their natural parents there is no power to revoke parenthood, except by making an adoption order. Accordingly, a transfer of parentage back to the natural parent can only be achieved by the making of another adoption order.
However, the law states that an application for an adoption order may only be made if the person to be adopted has not attained the age of 18 on the date of the application, so a further adoption order was not possible here.
Of course, some people may consider it wrong for there to be no possibility of revoking an adoption order where that is seen to be the best thing for the welfare of the child. After all, aren’t all decisions relating to children made by the family court decided on the basis of what is best for the welfare of the child?
The answer to this lies in the particular nature of adoption orders.
Delivering the judgment of the Supreme Court, Lord Stephens and Lady Simler explained the rationale for there being no power to revoke adoption orders. They said:
“There are strong public policy reasons for the “peculiar finality” of an adoption order once made, grounded in the nature and intended effect of an adoption order but also in the potential damage that would be done to the lifelong commitment of adopters to their adoptive children if there was a possibility of the child, or indeed the parents, subsequently challenging the validity of the order, and to the willingness and availability of prospective adopters if this possibility were to exist. These policy considerations militate against any measure which dilutes or undermines the finality and certainty of an adoption order.”
And this is surely true. Adoptive parents play a vital role in society, and it is essential that prospective adopters are not discouraged from coming forward. They take on the responsibility for the upbringing of a child, and for being the child’s life-long parent, just as a natural parent does. They should therefore legally be in the same position as a natural parent, without the ‘threat’ hanging over them that the adoption could at some point be revoked.
Another way to look at it would be that it is not unusual for a child to have a falling-out with their natural parent, but that would not entitle them to have their mother’s or father’s parentage legally revoked.
5. Conclusion: What are the implications of the Supreme Court decision?
As the Supreme Court pointed out, the case is important, as it is likely that there will be other cases like it, and the decision did not depend on the facts of this particular case, so will be applicable to all other adoption cases.
Whilst the case does not change the law, it does make absolutely clear that the rules on adoption really do mean that adoption is intended to be permanent, and final. This is obviously something that must be fully understood by anyone seeking an adoption order, by any natural parent whose children may be adopted and, indeed, by anyone who wishes to be adopted.
It is therefore absolutely essential that, if you fall into one of those categories, you seek expert legal advice before proceeding. Walker Family Law has specialist Child Law Solicitors who can provide you with the advice that you need. To find out how you can get in touch with us, see this page.
